Ahkter v Khan

In NA v MSK [2018] EWFC 54, Williams J held that by reason of the husband's actions, there was no valid marriage.[8] The starting point in relation to the interpretation and application of the Matrimonial Causes Act 1973, s11 stemmed from A v A [2012] EWHC 2219. He also considered the Articles 8 and 12 of the European Convention on Human Rights and Article 3 of the UN Convention on the Rights of the Child, stating:

'In this case where the husband led the wife to believe that they would undertake a civil ceremony as part of the process of marrying and has thus left her in the situation where she does not have a marriage which is valid under English law the husband himself has infringed her right to marry.'[9]

What brought a ceremony within the scope of the Marriage Act 1949 had to be approached on a case-by-case basis.[10] When considering the question of a marriage the court had to take a holistic view of a process rather than a single ceremony, taking into account whether: the ceremony or event set out or purported to be a lawful marriage, including whether the parties had agreed that the necessary legal formalities would be undertaken; it bore all or enough of the hallmarks of marriage including whether it was in public, whether it was witnessed, whether promises were made; the three key participants, most importantly the officiating official, believed, intended and understood the ceremony as giving rise to the status of lawful marriage; the failure to complete all the legal formalities was a joint decision or due to the failure of one party to complete them.[11] Williams J granted a decree of nullity using this approach.[12] Mr. Khan appealed.

The Court of Appeal (with Sir Terence Etherton MR, King LJ and Moylan LJ) allowed the appeal. A court could grant a decree of nullity on the ground that a marriage was void was to be determined by the provisions of Matrimonial Causes Act 1973, s11 and the Marriage Act 1949. S11(a)(iii) applied only where the parties had intermarried according to the rites of the Church of England, under s25 of the 1949 Act or intermarried under s49, but had failed to comply with the formalities non-compliance with which ss25 and 49 expressly stipulated would make the marriage void.[13] The Court of Appeal also held:

"As referred to above, however, we agree with observations that have been made about the unsatisfactory nature of the expression “non-marriage”. We consider that the focus should be on the ceremony and would propose that they should be called a “non-qualifying ceremony” to signify that they are outside the scope of both the 1949 and the 1973 Acts."[14]

The right to marry under Article 12 was not engaged; even if it was, the facts did not give rise to any breach (considering Owens v Owens [2017] EWCA Civ 182):

"This court is bound by Owens ... It being “irrefutable” that there is no absolute right to be divorced under Article 12, the question is whether Article 12 applies to nullity. In our judgment it does not. Logic alone would dictate this to be the case but, in any event, casting back to the ECtHR’s words in Johnston, if Article 12 cannot cover ‘the dissolution of a marriage”, it cannot cover a situation where a marriage is declared null and void ab initio. In our judgment, counsel at first instance were right in their joint view that Article 12 has no place in this case."[15]

Also, even though Article 8 was engaged, the state's failure to recognize the marriage did not breach the right. The right or grant of a degree of nullity does not itself engage Article 8, which means that there is no right to divorce.[16] The court considered Williams J's reasoning to contradict the Law Reform (Miscellaneous Provision) Act 1970, s1, which abolished any legal effect of a promise to marry as no agreement to marry can take effect as a contract.[17] It concludes:

"In addition, the question of whether a marriage is void must, in our view, depend on the facts as they were at the date of the alleged marriage. A marriage either is or is not void and either is or is not within the scope of the 1949 Act at the date of its alleged solemnisation. The determination of whether a marriage is void or not cannot, in our view, be wholly (or in part) dependent on future events, such as the intention to undertake another ceremony or whether there are children. There is no basis, under Article 8 or by virtue of the impact of Article 3 of the United Nations Convention on the Rights of the Child 1990 (“UNCRC”), by which the legal effect of the same ceremony could be converted including from a non-marriage to a void marriage."[18]

Considering the above, the Nikah was a non-qualifying ceremony: the fact that the parties had intended to undertake a civil ceremony at a later date could not bring the Nikah ceremony within the scope of the 1949 Act. Therefore, Mrs. Ahkter was not entitled to a decree of nullity.[19] The ceremony was not performed in a registered building and no notice had been given to the superintendent registrar. Also, no certificates had been issued and no registrar or authorised person was present. Finally, the parties were aware that the Nikah had no legal effect and failed to take a subsequent ceremony to make their marriage valid.[19]